Wrongful Convictions and the Judiciary

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Law Review lecture focuses on progress made by science, legislation

(Boston, News-6/5/12) New England Law | Boston: The advent of DNA testing has drawn the curtain back on one of our justice system’s significant challenges: the jailing of innocent defendants. Faulty identifications, inadequate counsel, and false confessions are among the factors that have deprived blameless men and women of their liberties. Some even endure stints on Death Row before science and determination rescue them.

A careful analysis of the trial records of the first 250 people exonerated by DNA forms the core of Convicting the Innocent: Where Criminal Prosecutions Go Wrong by Professor Brandon L. Garrett of the University of Virginia School of Law, who was the featured speaker at the New England Law Review’s spring 2012 lecture, Wrongful Convictions and the Judiciary. The New York Times hailed Garrett’s 2011 book as “…a gripping contribution to the literature of injustice, along with a galvanizing call for reform.”

Practitioners, advocates, and law students packed New England Law | Boston’s Cherry Room on March 19 to hear Professor Garrett and his fellow panelists: Gretchen Bennett, executive director, New England Innocence Project (NEIP); Hon. Robert Cordy, associate justice, Massachusetts Supreme Judicial Court and New England Law adjunct professor; and Hon. Nancy Gertner, former U.S. District Court Judge for the District of Massachusetts. Professor David Siegel moderated.

The panel discussion was followed by a “paper symposium” in which invited scholars wrote in response to Professor Garrett’s book.

The Commonwealth’s new law

The March lecture was presented shortly after passage of Massachusetts bill S.1987, which guarantees defendants and potentially innocent inmates post-conviction access to forensic and scientific analysis in their cases, including DNA evidence.

Gretchen Bennett of NEIP saluted Professor Siegel for filing the New England region’s first “DNA access” law in 2003. This initial attempt was unsuccessful, but he and others persevered, with Massachusetts becoming the penultimate state to enact this type of statute.

“Now that we have it, I think it’s one of the best laws in the country,” said Bennett. She stressed the law’s preservation aspect, which requires biological evidence that could potentially prove innocence to be preserved as long as the individual in question is under supervision. “I don’t think I could overstate what this bill means to people in Massachusetts who are trying to prove their innocence.”

Making progress on a longstanding problem

Justice Cordy, who teaches Criminal Procedure II, framed the issue by referring to his opportunities over the years to “reflect upon the American experience” through meetings on U.S. jurisprudence with international jurists. “We have been and continue to be imperfect in so many respects,” he admitted, “but what distinguishes us in so many ways is that we care deeply about our imperfections.”

Judges have a role to play, as do police, prosecutors, legislators, and institutions such as New England Law. “Reducing error in our criminal justice system is our collective responsibility,” Justice Cordy said, adding how difficult it is for courts to correct errors that occur in the investigative process. “Much of the burden of getting it right falls on the shoulders of law enforcement and prosecutors. That’s where a huge difference can be made in everyday cases.”

The problem of ineffective counsel

Judge Gertner led off the panel by discussing the influence of certain types of forensic evidence that have “a long pedigree,” including fingerprint and handwriting evidence. “Some lawyers feel that it’s not worth challenging this evidence,” she commented, as they assume that their challenges will be rebuffed. She concurred with Professor Garrett’s finding that a large proportion of wrongful convictions are due to ineffective assistance of counsel.

False confidence and false confessions

A prime contributor to wrongful convictions is that some witnesses are highly believable even when their testimony is inaccurate. “Social scientists have shown that it’s the confidence of witnesses that affects jurors,” said Garrett.

Garrett described “system variables” that can lead even well-meaning witnesses astray. For example, sexual assaults often take place in the dark with victims under terrible stress, leading to possible identification error. Another common scenario is when a witness is summoned to view a line-up after being told, “We’ve caught somebody,” without being informed that the suspect may not, in fact, be present in a particular line-up. Upon viewing a line-up, witnesses may also be influenced by unintentional, nonverbal cues from law enforcement.

Paper symposium

The paper symposium, Issue 4, Volume 46 of the law review, will also feature papers by Professors Simon A. Cole, University of California, Irvine; Deborah Davis, University of Nevada, Reno; Richard A. Leo, University of San Francisco School of Law; and Elizabeth E. Loftus, University of California, Irvine, along with an additional contribution from Professor Garrett.